Was this ground for divorce ever invoked, 1923-1970?

I have long considered the intricacies of English divorce law one of my topics of niche pedantry, and will happily, though perhaps not for my hearers, discourse of the errors made in historical fictions when invoking the dissolution of marriage as a plot-point. Also the sometimes curious lack of interest of biographers in how a wife had managed under a grossly unequal law to get quit of her husband. But I recently discovered a new twist.

I have somewhat belatedly been digging into questions a couple of people raised with me last year about Lord Dawson's contribution to the House of Lords debate on the Matrimonial Causes Bill 1936. This became the 1937 (Herbert) Act, extending the grounds for divorce beyond simple adultery in either party to include cruelty, desertion and insanity. In the course of his speech, Dawson said:

[I]t is an important omission from the Bill. In the case of homosexuality I shall ask that this be made a cause alike for men and women. It is time for equality in that matter.

 Except, I had been under the impression that homosexuality was not grounds for divorce.

However, on doing a little digging, one discovers that, going back to 1923, it appears that in theory at least, there was an anomaly that a wife could petition on the ground that her husband had, since the celebration of the marriage, been 'guilty of rape, sodomy or bestiality': but this would, presumably, mean convicted of a serious sexual crime and sent down for it. These had already been among the causes which, added to simple adultery, had provided women with grounds for divorce under the 1857 Act.

This does, though, rather preclude the kind of equality before the law that Dawson was positing, since lesbianism was not a crime under English law at the period - its depiction in literature (as in the case of The Well of Loneliness) might be deemed obscene but the actual practice was not illegal. The Amendment he suggested: 'has since the celebration of the marriage been guilty of the practice of homo-sexuality' raised considerable questions and was not accepted.

I do have remaining questions as to whether there are divorces on record in which bestiality or sodomy was the ground invoked, or whether, with the possibility of this coming into court, the husband just did not defend the action or did the stock collusive procedure of hotel room + hired co-respondent. I also wonder whether 'gross indecency' under the Criminal Law Amendment Act 1885 counted or whether a strict definition under the Offences Against the Person Act 1861 applied.

A welcome return to Victorian values

I.e. those Victorian values embodied in Alfred Swaine Taylor's 1879 Manual of Medical Jurisprudence in his discussion of the question of abortion. In discoursing of a case in which, to his distaste. 'the medical man appeared in the capacity of an informer as well as expert', he offered the opinion that the medical man 'should refuse to... lend himself in any way as a detective for the purposes of a prosecution'.

That is, doctors were not in the business of grassing up women who had had abortions, though at that period, they would almost certainly have mainly encountered them when they were at the point of death. Swaine Taylor commented on the frequency of occurrence of miscarriage, both from natural causes and accident.

It was reassuring, in the light of the recent spate of prosecutions of women under the 1861 Offences Against the Person Act for procuring their own abortions, to read that the Royal College of Obstetricians and Gynaecologists has issued a statement that 'it is "never" in the public interest to report women who have abortions, and that they must be safeguarded'.

The organisation says it is "concerned" by the rising number of police investigations following abortions and pregnancy loss, and the effect this might have on "especially vulnerable" patients.

Dr Jonathan Lord, RCOG's medical director, told the BBC: "A law that was originally designed to protect a woman is now being used against her.

"We have witnessed life-changing harm to women and their wider families as a direct result of NHS staff reporting women suspected of crimes, and we just don't think that would happen in other areas of healthcare.

"We deal with the most vulnerable groups who may be concerned about turning to regulated healthcare at all, and we need them to trust us".

Dr Lord said he believed some NHS staff had shared information with police because they were "ignorant" about confidentiality regulations.

The centrality of concern for women's care was manifested in the early twentieth century following complaints by police and the judiciary that medics ought to make more effort to extract information about illegal abortionists from the women they treated. The Royal College of Physicians sought legal counsel and passed a resolution ‘Concerning the Duties of Medical Practitioners in Relation to Cases of Criminal Abortion’: these stated the ‘moral obligation’ to respect the patient’sconfidence. Without her consent a doctor would not be ‘justified in disclosing information obtained in the course of his professional attendance’. However, if a doctor was convinced that criminal abortion had occurred, he should urge the patient, especially should she be likely to die, to make a statement, ‘provided always that her chance of recovery are not therefore prejudiced’. If she refused to make a statement, the doctor was under no obligation to take further action except those to do with his medical attendance upon the patient.

 

Transnational abortion in times of illegality

I was delighted to see that Mexico recently decriminalised abortion, but I also went, wait, haven't I read novels, and maybe memoirs, from a much earlier period, involving women from the USA going across the border to obtain their terminations? I know I have a couple of citations in my Literary Abortion webpage, as well as a link to an article on the Association to Repeal Abortion Laws, which helped women travel outside the USA, pre-Roe, to Mexico (also Puerto Rico and Japan), giving referrals for safe though ellegal doctors.

There's also a trope in the earlier twentieth century of women from the UK going abroad to France (Paris in particular was much mentioned) or Switzerland or the Netherlands to obtain abortions, even though the situation was no more legal in those countries. Abortion remained illegal in France until the Manifesto of the 343 called for legalisation of abortion and access to contraception in the early 1970s. There must have been networks of information about sympathetic/competent doctors. In the laters 1930s abortion was legalised in Denmark and Sweden but it would very likely have been more difficult for the foreign visitor to access given the system of bureaucratic panels.

While delving into the novelist Ethel Mannin's letters of the 1930s to her friend and former lover Douglas Goldring I found one, writing from Vienna, in which she mentions her pregnancy (undated, naughty Ethel, but probably early 1930s) and her ambivalence about continuing it, and suggesting she might go to Prague to get it terminated but that would be inconvenient for various reasons (this would not have been actually legal in Czechoslovakia at the period) and then mentioning various UK doctors who might assist her if she returned there. But Ethel was very much in progressive sex reform circles (she had her Grafenberg ring fitted by Grafenberg himself, noting that it was cheaper even with the travel there than what Norman Haire charged in Harley Street).

I'm not sure how one would go about uncovering further details of this phenomenon. Women like the Labour politician Jennie Lee, who apparently horrified Nye Bevan's sister by declaring that if by some accident she fell pregnant she 'knew what to do' had £100 and would 'go to Holland' (where abortion was not legalised until 1984), did not expand on these tantalising hints of secret women's knowledge. Letters? diaries? would this even have been written down, or, if written down, preserved beyond immediate need?

There could have been reasons of discretion for going to distant places where they were not known if they could afford it.

Pretending medical conditions for journalistic clout

I have lately been seeing a lot of understandable pushback concerning the BBC Panorama documentary involving a journalist going undercover to access private diagnosis and treatment for ADHD - for which there are very substantial waiting times in the NHS. This had been described by the ADHD Foundation in their Response to BBC Panorama “Private ADHD Clinics Exposed” as

a poorly researched, sensationalist piece of television journalism. This programme has focussed on a niche issue whilst completely ignoring the broader context, including why there has been a rapid growth in private providers.  Some private providers do provide quality service. We believe the unscrupulous behaviour of some people/organisations in the private sector should be challenged, but it must also be contextualised within the wider environment of our health services.

I am not sure if anyone else was reminded of this, but it recalled to me the 1974 scandal around articles in the News of the World, subsequently published as a book, Babies for Burning, based on very dodgy undercover journalism involving abortion providers. The authors, Michael Litchfield and Susan Kentish, made unsubstantiated claims about the practices of abortion providers, including non-profit organisations such as the British Pregnancy Advisory Service, up to and including offering abortions to women who were not even pregnant. In the course of their investigations, the couple gave themselves out as seeking an abortion for Kentish, who was not pregnant: they had provided themselves with a urine sample of a confederate who was, to lend verisimilitude to their narrative.

The libel case brought by BPAS is substantially documented in their archive at Wellcome:

Much of the content of the book was found to be based on misleading evidence, as revealed in a Sunday Times article, 'Abortion Horror Tales Revealed as Fantasies'. The authors withdrew their allegations against the BPAS in a statement in open court on 18th January 1978. They ‘apologise[d] for any distress and damage’ which their allegations had caused and ‘recognise[d] that BPAS exercises the greatest care in the employment of qualified medical practitioners, and in selecting and training its counsellors.’ There is also documentation of several other separate but related cases[.]

There is also a significant group of files relating to the case in the archives of Brook, as well as Diane Munday's own file among the archives of CO-ORD: Co-ordinating Campaign for the Defence of the 1967 Abortion Act:

Papers, correspondence and press cuttings relating to statements made in the book Babies for Burning (1974) alleging that pregnancy testing agencies deliberately informed women that they were pregnant when they were not. The BPAS claimed that many of the conversations allegedly reproduced in the book were distorted by the authors. 

Litchfield and Kentish were not only found guilty of several instances of libel: they were also guilty of lying to the Select Committee on the Abortion (Amendment) Bill (1975), by submitting to it transcripts which they alleged were a faithful account of interviews and tapes recorded:

I wish, Mr. Speaker, to raise a question of privilege.... Mrs. Diana Munday, of the British Pregnancy Advisory Service, has spent 300 hours transcribing the tapes and comparing them with the transcripts produced to the Select Committee. As you may know, Mr. Speaker, apologies have been made to the British Pregnancy Advisory Service and all the allegations against it have been withdrawn.... My point is that the Select Committee was deceived by Miss Susan Kentish and by Michael Litchfield and lies were told to the Select Committee in order to mislead and influence that Committee's conclusions. This is a serious matter.

The case is discussed in Sally Sheldon, Gayle Davis, Jane O’Neill and Clare Parker, 'The Abortion Act (1967): a biography', Legal Studies (2019), 39, 18–35:

The investigation had a clear impact on early attempts to restrict the Abortion Act. One MP is said to have based his personal research for his 1975 abortion bill on reading the proofs, and others explicitly attributed their support for it to the book. Litchfield and Kentish were invited to give evidence to an important Parliamentary Select Committee, which in turn influenced further measures aiming to restrict the Act.

They suggest that 'While it was without doubt the most important scandal to have engulfed the Abortion Act, more than forty years on, Babies for Burning has been largely forgotten' but that 'the ongoing use of media ‘stings’... [has] become a significant and recurrent feature of [the Act's] life'.

 

International Women's Day 1923: will this centenary be celebrated?

The Matrimonial Causes Act 1923

I am not sure whether this is generally considered a major leap forward in the advancement of women in England, but the writer Clemence Dane certainly believed it was:

[T]his slip of paper is one of the most important scraps of paper in the history of women, in the history, at any rate, of English women.... [it] defined, so long as England and the English idea shall endure, the status of women: it concedes for the first time her absolute right as a human being to the same law and the same justice that man enjoys. (Clemence Dane, The Woman's Side 1926, pp. 106-7)

I.e. it legally recognised a Single Moral Standard between the sexes, rather than having a much higher bar of marital misconduct in the male for authorising the dissolution of marriage. While it did not go anything like as far in establishing the wider grounds for divorce as some bodies had advocated to the Royal Commission on Marriage and Divorce prior to the Great War, nonetheless it was a significant step in making divorce more available.

It is not entirely easy to ascertain how far women took advantage of this new measure. In spite of the difficulties under the previous law a significant number of divorces had been sought and achieved by women. Under the new law (and possibly even before), there was a social convention that, if a couple wished to divorce, and were not on completely hostile terms, they would come to an arrangment whereby, whatever the rights and wrongs of the situation, the husband would let the wife divorce him by providing evidence of adultery. This would obviously somewhat exaggerate the statistics.

Even if he was the guilty party, the man might spare the reputation of the woman he might, after all, intend to marry once his first union was dissolved, by employing the services of a hired co-respondent, who would provide 'evidence' by going with him to a hotel, where the bill would reveal that he had taken a double room. and the pair would be discovered by the maid who brought the morning tea. The actress and nightclub entrepreneur Elsa Lanchester described in her autobiography, Elsa Lanchester Herself how as a penurious young woman she would undertake this masquerade - no actual sex was involved, they would usually play cards to occupy the time. 

An instance of this 'judicial farce' was recently revealed when the papers of the solicitor who handled Wallis Simpson's 1936 divorce from her husband were opened in 2019. The hotel to which Ernest Simpson took his anonymous companion -  'the woman named' - was very proud of its reputation for discretion about its guests and therefore reluctant to disclose any information to the inquiry agent.

It was not until 1937 that AP Herbert's Matrimonial Causes Act finally extended the grounds beyond adultery, and even then the action remained adversarial and based in concepts of 'guilt' and 'innocence'.

 

 

 

An original misreading of the Labouchere Amendment

In spite of the amount of historiography there now is on homosexuality in C19th Britain and the ways it was controlled and policed, one still comes across people asserting that the 1885 Labouchere Amendment to the Criminal Law Amendment Act 'made homosexuality illegal' (even though male-male sex had been a capital crime until 1861 - with the last actual executions taking place in 1834 - when life imprisonment was substituted under the Offenses Against the Person Act).

But this is in entirely new realms of misunderstanding the Amendment:

An 1885 legal reform known as the Labouchere Amendment had an unforeseen loophole that suddenly made masturbation (as well as fellatio) legal. 

As if masturbation had previously been legal and as if the law had taken specific cognisance of fellatio before 1885. Variations on penetrative sex between two men had usually been subsumed under 'attempted sodomy' or 'indecent behaviour'. Demands for oral sex within marriage sometimes featured a part of a plea of cruelty in matrimonial cases.

But masturbation, as opposed to indecent exposure, was not illegal. The 'solitary vice' would surely have presented particular difficulties in policing. But, as I argue in Sex, Gender and Social Change in Britain, 1880 to the present it provides a particularly striking example of a sexual behaviour which, though not illegal, was nonetheless highly stigmatised and subjected to other forms of control.

Perhaps the author of the article believes that the law mandated the imposition of similar preventive devices upon conviction?

Trial by Jury

There has been a lot of jeremiah polemicising following the recent dismissal of a jury for failing to reach a conclusion after asking what were reported as questions displaying a disastrous lack of understanding of the process, and certainly this episode did not cast a glorious light on this great British tradition.

However, it did make me think of those cases in which juries reached a conclusion perhaps rather different from the one they were expected to, and indeed was possibly considered desirable, in certain historic trials over issues of obscenity.

Possibly the verdict that Knowlton's birth control tract Fruits of Philosophy was indeed calculated to deprave public morals, but that Charles Bradlaugh and Annie Besant had had no corrupt motive in publishing it in 1877, was a somewhat spurious compromise. However, in a later birth control case, that of Henry Young, prosecuted under the Post Office Act in 1891 for sending out Malthusian pamphlets, a note on the file in The National Archives records official relief that the case was dealt with in the magistrates' court, rather than brought before a jury, because it was the kind of case where juries tended to sympathise with the defendant. It may be noted that the case against Radclyffe Hall's The Well of Loneliness (1928) was heard before a magistrate who refused to admit any of the line-up of potential defence witnesses.

However, in the 1942 case of the prosecution of Eustace Chesser's marriage manual Love without Fear and the even more famous 1960 prosecution of Penguin Books for publishing a cheap paperback edition of D H Lawrence's Lady Chatterley's Lover, gambling on the likelihood of the jury being impressed by the sincerity of the defendant or bringing healthy demotic commonsense to bear undoubtedly paid off in not-guilty verdicts.